New Jersey Real Estate Attorney Blog
The matter of O’Neill v. Township of Tewksbury Zoning Board provides a lesson for property owners who rely on municipal Zoning Officials. Mark and Kathy Wood were delighted to learn that a municipal zoning ordinance stating that tennis courts could not be constructed within forty feet of a property line did not apply to them. Relying on the information provided to them by the Tewksbury Township zoning official, the Woods built a tennis court in their back yard. The only problem was that the zoning official had only read part of the ordinance.
In addition to side yard set-back requirements, most municipalities also apply a limit to impervious lot coverage. In other words, the foot print of all structures on a property cannot exceed more than a certain percentage of the entire property. Very early on, it became clear to the Wood family that the proposed tennis Court would cause them to exceed the limit for impervious lot coverage. The Zoning official, still not addressing the side yard set-back problems, advised the Woods that they would need a variance for the impervious lot coverage. The Woods instead addressed this problem by building their tennis Court using a pervious (porous) surface. This is a common solution employed by many home owners for not only Tennis Courts, but also for the use of sidewalks and patios. The municipal official did not address the more problematic issue that the proposed tennis court would not comply with the township’s set-back requirements.
The trouble for the Wood family started when their neighbor, who had been away during the beginning of the construction, complained to the Zoning official. Shortly after the tennis court was completed, the Zoning officer issued a Notice of Violation to the Wood family. The Wood family argued that since a pervious surface was used, the set-back requirement did not apply. During this time, the tensions between the Woods and their neighbors escalated. The neighbors eventually filed a Court action seeking to force the Woods to remove their tennis court.
The Court dismissed the neighbors’ action. After a second time of arguing with the municipality, the neighbors re-filed their action with the Court, this time disputing the zoning board’s decision. The Court ordered the Woods to remove their tennis court. The Woods appealed the decision to New Jersey Appellate Division, who agreed with the lower Court that the township ordinance was very clear in its requirement that tennis courts in town be set back at least 40 feet from the property line.